R v Y, K - [2016] SASCFC 18

SUPREME COURT OF SOUTH AUSTRALIA
(Court of Criminal Appeal)
R v Y, K
[2016] SASCFC 18
Judgment of The Court of Criminal Appeal
(The Honourable Justice Kelly, The Honourable Justice Blue and The Honourable Justice Nicholson)
2 March 2016
CRIMINAL LAW - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE - GROUNDS FOR INTERFERENCE - SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE
CRIMINAL LAW - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE - GROUNDS FOR INTERFERENCE - OTHER MATTERS
CRIMINAL LAW - SENTENCE - RELEVANT FACTORS - NATURE AND CIRCUMSTANCES OF OFFENDER - GENERALLY
CRIMINAL LAW - SENTENCE - PURPOSE OF SENTENCE - DETERRENCE
The appellant was convicted of one count of persistent sexual exploitation of a child. That conviction related to offences against the appellant’s stepdaughter, "R". The offending persisted from 1978, when R was about five years old, until 1990 when R was about 17 years old and occurred in the context of extreme and violent punishments. The appellant was sentenced to 14 years and six months imprisonment with a non-parole period of nine years.
Whether the head sentence and non-parole period are manifestly excessive. Whether the Judge erred in failing to have any or adequate regard to certain factors. Whether the Judge erred in failing to have regard to the absence of the need for personal deterrence.
Held per Kelly J (Blue and Nicholson JJ agreeing) (dismissing the appeal):
1. The starting point for the head sentence is within the range identified in R v D (1997) 69 SASR 413 and is not manifestly excessive.
2. The non-parole period is fairly within the range available to the Judge having regard to the need to fix a non-parole period properly proportionate to the gravity of the crime.
3. It was open to the Judge to take the view that the absence of evidence of any subsequent offending was of little significance in assessing the likelihood of reoffending.
Criminal Law (Sentencing) Act 1988 (SA) s 29D, referred to.
R v D (1997) 69 SASR 413; R v MJJ; R v CJN (2013) 117 SASR 81; R v Quinn (2012) 114 SASR 354, discussed.
R v Y, K [2015] SASCFC 94; R v Marien [2011] SASCFC 116; R v T, SA (2014) 120 SASR 145; R v Fleming [2011] SASCFC 75; R v R, AW (2012) 113 SASR 179; R v MacGowan [2012] SASCFC 138; R v Creed (1985) 37 SASR 566, considered.

R v Y, K
[2016] SASCFC 18
Court of Criminal Appeal: Kelly, Blue and Nicholson JJ
KELLY J.
Introduction

This is an appeal against sentence. The appellant was convicted after a trial by Judge alone of one count of persistent sexual exploitation of a child. That conviction related to offences against the appellant’s eldest stepdaughter, to whom I shall refer as “R”. The appellant was also tried and acquitted of a second count of the same offence against the appellant’s other stepdaughter, to whom I shall refer as “Z”. The offending persisted from 1978, when R was about five years old, until 1990, when R was about 17 years old.
The appellant unsuccessfully appealed against his conviction.[1] On 19 June 2015 the appellant was sentenced to a head sentence of 14 years and six months imprisonment with a non-parole period of nine years. The appellant now appeals against that sentence on three grounds, namely: that the head sentence and non‑parole period are manifestly excessive; that the sentencing Judge erred in failing to have any or adequate regard to certain factors; and that the sentencing Judge erred in failing to have regard to the absence of the need for personal deterrence.
Background
[1] R v Y, K [2015] SASCFC 94.
The offending
R’s evidence was that the appellant, who was in a relationship with R’s mother, “DY”, sexually offended against her on numerous occasions from the time when she was about five or six years old until she was about 17 years old. Prior to the appellant and DY’s marriage, DY’s three children from a previous relationship, R, Z, and a son, “S”, lived with the appellant. They continued to live together after the appellant and DY married in 1980. R was born in 1973. Z was born in 1974. S was born in 1975. DY and the appellant had two sons together, J, born in 1982 and P, born in 1992.
R gave evidence of numerous instances of sexual offending by the appellant in two different family homes and at other locations. The Judge found, and sentenced the appellant on the basis, that the appellant touched R to the labia and vaginal area while administering corporal punishment, touched and penetrated R’s labia during baths, and also touched R’s vagina with his fingers and penetrated her vagina with his penis. This sexual offending occurred regularly. The Judge also found proved that the appellant touched and penetrated R’s vagina in a car at a drive-in theatre and on an interstate trip.
R, Z and S gave evidence that the appellant was a severe disciplinarian and administered extreme and violent punishments. Specifically, R gave evidence of a punishment called ‘Wuthering Heights’, in which she was required to strip naked, bend over and put her hands behind her head, and remain in that position for an hour or longer. If she moved from that position, the appellant struck her with a belt or a stick. R’s evidence was that ‘Wuthering Heights’ always involved the appellant striking her and the appellant inserting a stick or his fingers into her labia. The appellant would also spit on his fingers and rub her bottom and labia, and would kiss R’s bottom to indicate that the punishment was finished. R recalled that the ‘Wuthering Heights’ punishment ceased after she turned 10 years old, but while she was still living in the first of the two homes her family shared with the appellant.
Another punishment, ‘the Scarecrow’, started when R was aged 9 or 10 and required the children standing with their arms stretched out horizontally in the air and swivelling their bodies around. At first R was clothed but eventually the appellant told her to take her clothes off for ‘the Scarecrow’ punishment.
It was R’s evidence that she, Z and S were punished “systematically, every couple of weeks, maybe once a month” and during periods without punishment she would be living in fear. R, Z and S also saw the appellant order DY to strip and he then strapped her. The appellant physically assaulted DY when she tried to intervene to prevent him from punishing her children.
R left the home when she was 17 years old and went to live with her grandparents, because she wanted to escape the sexual, physical and emotional abuse.
The trial Judge considered that:[2]
The evidence in respect of punishment not only reveals sadistic features but also some sexual aspects particularly the requirement that Z and R be naked or partially naked during punishments and that punishments were often linked to sexual touching of the labia of R.
[2] R v Y, K [2015] SADC 29 at [255].
The appellant’s physical punishments were not the subject of any charge, and the Judge in sentencing noted that the appellant was not to be sentenced for any offences in respect of violent behaviour towards R’s siblings, and that the appellant’s punishment of R was linked to his sexual interest in her.
R provided a victim impact statement for the purpose of sentencing. There is no doubt that the offending has had a profoundly negative and ongoing impact on her life. R described feeling shame, self-loathing and wanting to die, believing that this would end her pain and that the appellant would be happy if she died. R found it difficult to learn and to make friends, and speak to others, and only at the age of 16 decided to “start growing [herself] because [she] realised that [she] was not dead and that [she] was not supposed to die. [She] realised [she] was a human being.” When she was 25, R was diagnosed with post traumatic stress disorder, and has undergone counselling and cognitive therapy. R has struggled to develop and maintain friendships as an adult and consequently feels stress, shame, confusion and embarrassment. R blames the appellant for permanently destroying her relationships with DY and her siblings.
Personal circumstances
The appellant was born in 1953 and was 61 years old at the time of sentencing. The offending against R took place when the appellant was aged between 24 and 37 years old. He came to Australia at the age of about 10 years old and had what can only be described as a dysfunctional upbringing. The appellant’s personal history was detailed in a report from Dr Jules Begg, a psychiatrist who interviewed the appellant for the purposes of sentencing. The appellant had a difficult relationship with his parents and grandparents. His maternal grandmother lived in the same house when he was young, but never spoke to him. The appellant described his grandfather as a “rude bastard who would pick on [him] all the time”, and threaten him, although the appellant’s father stopped his grandfather from being physically violent towards him. The appellant described his mother as “terrible” and “nasty” and said that that she lied and was violent. For periods of six months or longer she would not speak to anyone in the house. By contrast, the appellant said that he loved his father, but could not trust him and was not paid proper wages when he worked for his father as a young adult. Dr Begg considered that these events shaped his personality as an adult, and were likely to have contributed to his offending behaviour.
The appellant performed poorly at school but completed year 8. He commenced an apprenticeship as a boilermaker but did not complete it, and has since worked most of his adult life as a labourer or in other semi-skilled work, including erecting fences, as a gravedigger, as a park ranger, and in pest control.
The appellant also claimed that he had suffered from poisoning or chemical exposure at different times, which had caused him memory difficulties. He claimed to have suffered from lead poisoning as a child causing him to have a bad temper and headaches, and also to have been affected by poison spray when he was 24 years old, resulting in memory difficulties, weight gain, food allergies and various other symptoms. Dr Begg identified that the symptoms described by the appellant are not consistent with the toxin exposures described. The appellant had no difficulties with memory testing administered by Dr Begg.
Submissions were also made regarding a number of other health complaints experienced by the appellant. He has taken anti-inflammatory drugs for a recurrent muscle spasm since he was 25 years old, and commencing in the late 1990s took an antidepressant for seven years, which he did not consider helped his depressed feelings. At one time he experienced suicidal ideation. In more recent years the appellant has suffered from chronic knee pain for which he has required surgery and physiotherapy.
The appellant attends a strict Pentecostal religious congregation. The appellant and DY became Christians in 1979 and attended church or other congregation meetings multiple times a week, and also attended church camps.
The appellant continues to deny the offending, and considers that the allegations against him are lies. In Dr Begg’s view the appellant’s lack of remorse raises two possibilities: first, that the appellant was deliberately withholding information or; secondly, that the appellant committed but does not recall the offending. Dr Begg expressed the following view:
Through the combined mechanisms of splitting and denial unacceptable aspects of oneself can be projected onto other people. It is therefore conceivable that his own unacceptable hostility and sexual urges are seen as emanating from the children, who are then righteously punished and blamed for his sexual behaviour towards them.
...
I cannot determine if he is choosing not to tell me about offending behaviour. It is consistent with his personality that he will repress memories of his behaviour that do not fit with the conception he has of himself as a good Christian man. This is known psychologically as denial. His experience of reality and the events that occurred are distorted. He can therefore say that he did not do the offending. This is because he cannot recall it. The use of denial acts as a barrier to the normal feelings of guilt that are associated with bad behaviour. Guilt for bad behaviour is good because it reduces the likelihood of repeating the behaviour. An absence of guilt feelings due to denial, therefore acts to increase the likelihood of reoffending.
As noted by the Judge in the course of sentencing, an unfortunate limitation of Dr Begg’s report is that it does not deal with the corporal punishment.
Complaints on appeal
On appeal the appellant identified two main complaints. The first is that the sentencing Judge departed significantly from the legislative standard now incorporated in s 29D of the Criminal Law (Sentencing) Act 1988 (SA) (the Sentencing Act) of 12 years without adequate explanation. The second is that the sentencing Judge failed to accord any weight to the fact that the appellant had demonstrated rehabilitation in the intervening years between the last offence and the reporting of the offending. In this respect the submission was made that the appellant’s lack of relevant antecedents, the matters raised in Dr Begg’s report, the appellant’s positive relationship with his wife, and the very long period between the date of the last offence and the reporting of the offence supported a finding that the appellant was in fact rehabilitated and unlikely to reoffend.
I commence with the submission that the sentencing Judge departed in a significant way from the legislative starting point identified in s 29D of the Sentencing Act without adequate explanation.
Section 29D of the Sentencing Act states:
29D—Sentencing standards for offences involving paedophilia
(1)The Parliament declares that—
(a) the 1997 amendment of sentencing standards reflected an emerging recognition by the judiciary and the community generally of the inherent seriousness of offences involving paedophilia; and
(b) the reformed standards should be applied to offences involving paedophilia committed before or after the enunciation of the 1997 amendment of sentencing standards (or committed in part before, and in part after, the enunciation of the 1997 amendment of sentencing standards).
(2)In this section—
1997 amendment of sentencing standards means the change to sentencing standards enunciated in R v D (1997) 69 SASR 413;
offences involving paedophilia means all offences to which the 1997 amendment of sentencing standards is applicable (whether individual sentences for the offences have been, or are to be, imposed or a global sentence covering a series of offences¹ or a course of conduct involving a number of criminal incidents²).
reformed standards means sentencing standards as changed by the 1997 amendment of sentencing standards.
Notes—
1 See section 18A of the Criminal Law (Sentencing) Act 1988.
2 See section 74 of the Criminal Law Consolidation Act 1935.
It is instructive to re-examine the salient points made by Doyle CJ in R v D.[3] Even though those comments were made nearly 20 years ago, they remain apposite today:[4]
[Offences involving unlawful sexual intercourse with a child] are offences that cause a feeling of outrage and revulsion in the community. The penalty must reflect that feeling. They involve a serious breach of trust. As this case makes clear, such offences cause serious harm to the victim in many cases. There is every likelihood that the effects of that harm will be prolonged, and perhaps lifelong. The courts must do what they can to protect children from such conduct. Deterrence is an important part of sentencing for an offence such as this. Although reasons for the offending vary, and sometimes the offenders are persons who were themselves sexually abused as children, it seems clear that such offenders are not usually persons who are unable to control their sexual instincts. While acknowledging that the punishment of offenders is only one factor that may limit the incidence of this offence, the courts must proceed on the basis that punishment has a part to play in deterring offenders.
Offences such as the present one have an insidious effect upon the community, and that is also something to consider. They lead, and I suspect are already leading, to a loss of trust in the very persons upon whom we often rely for the nurture of children, for their education, and for guidance, leadership and instruction for children. As our society becomes more aware of the extent to which children are subjected to sexual abuse, this insidious effect is increasing.
It appears that the sexual abuse of children by persons in a position of trust is quite widespread. It may not be occurring more often than it did in the past. It may well be that it is now being detected more often than it was. Be that as it may, the offences that are involved come before the courts with disturbing frequency. …
[3] (1997) 69 SASR 413.
[4] R v D (1997) 69 SASR 413 at 423.
His Honour concluded his remarks with the oft quoted passage which has given rise to the legislative standard in s 29D of the Sentencing Act:[5]
In my opinion offences involving unlawful sexual intercourse with children under 12 years of age, when there are multiple offences committed over a period of time, should attract as a starting point a head sentence of about 12 years imprisonment. In saying that I refer to a sentence imposed under s 74(7) of the Act and to a single sentence imposed under s 18A of the Criminal Law (Sentencing) Act 1988 (SA). That starting point would be subject to reduction on account of a plea of guilty, co-operation with the police, genuine contrition and so on. It is impossible to be precise in these matters, and I do not wish to be taken as suggesting a precise figure. In an appropriate case the starting point might be higher or lower.
[5] R v D (1997) 69 SASR 413 at 424.
It is also relevant to state again, as Doyle CJ observed, that sentencing is not a mathematical process and there must be sufficient flexibility in approach to the sentencing of persons convicted of sexual offences against young children to enable the court in each case to do justice according to the particular circumstances.
Although the appellant pointed to cases since R v D in support of the submission that the legislative standard now fixed by the Parliament in light of s 29D is the figure of 12 years, it is plain from those authorities[6] that the standard established in s 29D is not strictly prescriptive and in appropriate cases there may be departure from it.
[6] R v Marien [2011] SASCFC 116 at [27]; R v T, SA (2014) 120 SASR 145 at [2].
As Doyle CJ said in R v D, it is a tragic fact that offenders against young children are often otherwise of good character.[7] The need remains for this Court to do what it can to protect children against such persons.
[7] R v D (1997) 69 SASR 413 at 424.
More recently, Kourakis CJ in R v MJJ; R v CJN[8] affirmed this requirement as an important element in the sentencing process:[9]
There is no doubt that victims of sexual abuse and their families carry a substantial psychological and financial burden. There is also a great social cost to the community. Community anxiety about sexual offending curtails the freedom of children to explore their environment in a way which is a necessary part of their psycho-social development. It also generates increasing suspicion and sensitivity about completely innocent behaviours. The great personal and social harm caused by sexual offending against children demands a strongly deterrent sentencing response.
[8] (2013) 117 SASR 81.
[9] R v MJJ; R v CJN (2013) 117 SASR 81 at [84].

In similar vein Gray J said in R v Quinn:[10]
For sexual offences committed against children, paramount consideration should be given to the need for deterrence and punishment. In cases involving this kind of offending, where there has been a course of conduct by a person in a position of trust and authority, the starting point should be a substantial head sentence of imprisonment. Penalties should reflect community feelings of outrage and revulsion about offences of this type and the court is to do what it can to protect children from such offending.
The gravity of the offending and the need for deterrence and punishment are to be considered along with the defendant's circumstances, including his prospects for rehabilitation. It is to be accepted that a non-parole period may give greater emphasis to matters related to rehabilitation. However, personal circumstances are to be given less weight in the sentencing process for offences involving sexual exploitation of a child by virtue of s 10(4) of the Sentencing Act.
(footnote omitted)
[10] (2012) 114 SASR 354 at [29]-[30].
In support of the appellant’s argument that the starting point of 14 years and six months was manifestly excessive, the appellant relied on R v Fleming.[11] In that case a District Court Judge had sentenced an offender to imprisonment for 14 years and imposed a non-parole period of eight years and six months. The offender had been found guilty of conduct which occurred over a three year period in relation to a child aged between six and nine at the time. The Court of Criminal Appeal (Nyland and David JJ, Anderson J dissenting) upheld the appeal and reduced the sentence to 10 years with a non-parole period of seven years.
[11] [2011] SASCFC 75.
The decision in Fleming illustrates that each case must be determined in the light of its own particular facts and circumstances. The conduct demonstrated by the offender in Fleming was not as grave as the circumstances here, nor was the conduct accompanied by circumstances of aggravation such as the sadistic, cruel and unusual punishment of the victim. Even so the reasons of the majority in Fleming are brief and the decision does no more than reflect that, on the facts and circumstances there, a starting point of 14 years was found to be manifestly excessive.
With those principles in mind, I turn to consider the approach of the Judge to the sentencing of the appellant.
The sentencing Judge’s approach
In her remarks, the sentencing Judge outlined the sexual offending against R, and also noted that the appellant had inflicted “violent, degrading and extreme punishments upon [R], together with her siblings” that were linked to the appellant’s sexual interest in her. Her Honour noted that that the appellant was not to be sentenced for any offences against R’s siblings. The Judge also had regard to R’s victim impact statement.
The sentencing Judge then turned to consider the appellant’s background and the report of Dr Begg in detail. Her Honour considered the appellant’s dysfunctional upbringing and problematic relationships with his parents and grandparents. She also considered the appellant’s past and current personal relationships. Upon considering the appellant’s limited education and work history, her Honour formed the view that the appellant “did [his] best to work hard throughout [his] adult life.”
Her Honour referred to the appellant’s medical issues including physical injuries he had sustained and also his past psychiatric illness. Her Honour referred to the appellant’s belief that he suffered ill-effects as a result of poisoning at various times, but also to Dr Begg’s view that these physical symptoms are part of a somatic mechanism by which the appellant displaces his mind from his emotions. The Judge also noted Dr Begg’s conclusions and hypothesises that the appellant does not suffer from a severe psychiatric disorder that would have impacted upon his offending behaviour, that the offending arose out of the appellant’s aggression which became sexualised, and also that the appellant experiences somatic mechanisms and “splitting”.
The Judge noted that the offending was over a very long period of time, the victim was young, originally very young when it commenced, and it was extensive and invasive abuse. She acknowledged the personal difficulties and dysfunctional early life of the appellant; however she observed that these issues and problems of that nature are not necessarily uncommon in the backgrounds of sexual offenders involving children. She also noted without further comment the delay in reporting the offending behaviour and that there had been no evidence of any further offending since that time.
Discussion
The appellant’s argument on appeal was developed on the basis of an assumption that the appellant had demonstrated “established rehabilitation”. That assumption appears to have been based on the bare fact that there has been no further evidence of any offending since the offending conduct for which he was convicted was reported by the victim.
In the circumstances here, there is an air of artificiality in an assertion that the offender has been rehabilitated when there is an ongoing denial of the offending behaviour. The Judge specifically noted that feature of the psychiatrist’s report. Additionally, Dr Begg himself was alive to that conundrum when he made the following remarks:
The use of denial acts as a barrier to the normal feelings of guilt that are associated with bad behaviour. Guilt for bad behaviour is good because it reduces the likelihood of repeating the behaviour. An absence of guilt feelings due to denial, therefore acts to increase the likelihood of reoffending.
Assuming the offences are proven, it is noteworthy that it occurred within the confines of the family, and I presume there is no evidence of an interest in children outside of the family. I would postulate that he was unable to tolerate the normal aggressive behaviours of young children, which reactivated in his mind his own experience of aggression within his childhood. By retaliating against the stepchildren, the victims in this matter, he is acting out his own experience as a victim in his childhood. This is not an excuse for his behaviour but an explanation. It is helpful that he is now older, generally as people age the need to deal with their emotions from the past diminishes, age tends to subdue the emotions. He is also less exposed to the aggression of children. I understand he has grandchildren. I don’t think he will offend against them out of a conscious prurient interest. If he had the sole care of the children for longer than a few hours, the risk of anger within him due to the children’s behaviour might rise to an unacceptable level.
Those insightful comments illustrate the dilemma which faced Dr Begg in assessing the appellant and consequently, the Judge in sentencing the appellant.
The appellant’s continued denial of the offending and his refusal to discuss any aspect of his treatment of R with the psychiatrist makes it very difficult for anybody to assess with any accuracy first, whether in fact the appellant has rehabilitated and, secondly and more importantly, whether there is a risk of reoffending.
On one view of Dr Begg’s report the lack of any further offending might simply reflect the complex family dynamics in which the offending occurred and the fact that the appellant has not, in the intervening years, had the same access to dependent and vulnerable children.
Given the notable circumspection in the psychiatrist’s report on this topic, it is unsurprising that the Judge did not proceed to sentence the appellant on the basis that rehabilitation has been demonstrated. All that her Honour could do in those circumstances was what in fact she did, namely to note that there had been no further offending in the intervening years.
The offending in this case was very serious. The interplay of violent, sadistic, degrading and extreme punishments inflicted on the victim was also highly relevant to the sentencing process. Indeed, in his report Dr Begg made it plain that those behaviours formed part of the anger which later became sexualised. That conduct was a stark indicator of the extent of mental, emotional and physical control and domination exercised by the appellant over this very young victim for an extended period of her childhood.
The effects upon the victim have been catastrophic. For these reasons this case is a very serious example of the offence of persistent sexual exploitation of a child.
In these circumstances it was open to the sentencing Judge to take the view that the absence of evidence of any subsequent offending was of little significance in assessing the likelihood of reoffending. For the reasons I have expressed it was not of significance in determining the role both general and personal deterrence needed to play in sentencing the appellant. I would dismiss this ground of appeal.
The second argument advanced on appeal was that the Judge failed to identify the factors to which she had regard when fixing the non-parole period, as compared to the fixing of the head sentence.
As Nyland and Peek JJ observed in R v R, AW,[12] rehabilitation whether predictive or established is obviously an important factor in the fixing of both the head sentence and the non-parole period. Where there is proven rehabilitation, this can also be an important factor in setting the non-parole period.[13]
[12] (2012) 113 SASR 179.
[13] R v R, AW (2012) 113 SASR 179 per Nyland and Peek JJ.
However, for the reasons I have discussed earlier, the Judge was, in the circumstances, entitled to take the view that the issue of rehabilitation had little part to play in the setting of both the head sentence and the non-parole period.
In R v MacGowan,[14] Kourakis CJ observed that non-parole periods “are commonly fixed between 50 per cent and 75 per cent of the head sentence. It is the sentencing judge’s assessment of the prospects of rehabilitation which will most influence the actual proportion fixed in a particular case. Non-parole periods outside of that range will reflect either adverse or favourable circumstances which are not commonly encountered”.[15]
[14] [2012] SASCFC 138.
[15] R v MacGowan [2012] SASCFC 138 at [20].
The non-parole period imposed by the Judge in this case represented approximately 64 per cent of the head sentence. In my view the non-parole period is fairly within the range available to the sentencing Judge having regard to the need to fix a non-parole period properly proportionate to the gravity of the crime: “[I]t is necessary that the non-parole period, no less than the head sentence, operate as a deterrent to others”.[16]
[16] R v Creed (1985) 37 SASR 566 at 568 per King CJ.
The sentencing Judge was faced with a very difficult task in this case. There was no explanation proffered for the offending, no evidence of any insight, remorse or contrition demonstrated by the appellant, and the overall circumstances placed the appellant’s offending in a very serious category.
As such, I do not consider that a starting point two and a half years above the approximate range identified in R v D is so far outside the range that this Court should conclude that it is manifestly excessive. It is undoubtedly a severe sentence, however on appeal that is not the test.
The non-parole period in all of the circumstances was moderate and fairly within the range available to the sentencing Judge.
I would dismiss the appeal.
BLUE J: I agree.
NICHOLSON J: I agree the appeal should be dismissed for the reasons given by Kelly J.